UK High Court Hands Win To Claimant In Right To Be Forgotten Case

from the on-the-other-hand,-claimant-2-[hereinafter-JERKFACE]-gets-nothing dept

The UK High Court has handed down a win (and a loss) in the Right to be Forgotten column. Two plaintiffs seeking delisting of information about their past criminal exploits had their cases considered by the court. Only one of them is walking away with a court order for delisting. The other one will apparently have to live with his past.

The claimant who lost, referred to only as NT1 for legal reasons, was convicted of conspiracy to account falsely in the late 1990s; the claimant who won, known as NT2, was convicted more than 10 years ago of conspiracy to intercept communications. NT1 was jailed for four years, while NT2 was jailed for six months.

Granting an appeal in the case of NT1, the judge added: "It is quite likely that there will be more claims of this kind, and the fact that NT2 has succeeded is likely to reinforce that."

Google disputed both of these claims when they were filed, prompting the legal challenges. While the court admits there's a public interest in both cases, only one of the two claimants apparently deserves to have his history wiped clean. NT2 was more of a model citizen and convicted on lesser charges, so that's where the line is being (vaguely) drawn in enforcing the European Union's Right To Be Forgotten. The summary [PDF] of the decision quickly details the merits of NT2's case.

The crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order should be made. The conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 has frankly acknowledged his guilt, and expressed genuine remorse. There is no evidence of any risk of repetition. His current business activities are in a field quite different from that in which he was operating at the time. His past offending is of little if any relevance to anybody’s assessment of his suitability to engage in relevant business activity now, or in the future. There is no real need for anybody to be warned about that activity.

In comparison, NT1 has apparently learned nothing from his brush with the justice system, and headed right back into the professional field where he committed his original crimes.

NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence. My conclusion is that he is not entitled to have it delisted now. It has not been shown to be inaccurate in any material way. It relates to his business life, not his personal life. It is sensitive information, and he has identified some legitimate grounds for delisting it. But he has failed to produce any compelling evidence in support of those grounds. Much of the harm complained of is business-related, and some of it pre-dates the time when he can legitimately complain of Google’s processing of the information. His Article 8 private life rights are now engaged, but do not attract any great weight. The information originally appeared in the context of crime and court reporting in the national media, which was a natural and foreseeable result of the claimant’s own criminal behaviour.

NT1's sentence has also been served, but the court -- while nodding its head toward fresh starts after repaying debts to society -- determines NT1 only paid his debt begrudgingly and benefited from an interim law change that saw him released ahead of schedule.

The information is historic, and the domestic law of rehabilitation is engaged. But that is only so at the margins. The sentence on this claimant was of such a length that at the time he had no reasonable expectation that his conviction would ever be spent. The law has changed, but if the sentence had been any longer, the conviction would still not be spent. It would have been longer but for personal mitigation that has no bearing on culpability. His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. The information retains sufficient relevance today. He has not accepted his guilt, has misled the public and this Court, and shows no remorse over any of these matters. He remains in business, and the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past.

It's a bit of an inconsistent decision, but probably about as much as can be expected from a European ruling that says certain people can erase their pasts while others are doomed to repeatedly be disappointed with their vanity search results. At least this ruling shows challenged requests are being examined on a case-by-case basis weighing as much relevant information as possible. This is what Google is attempting to do as well, even though it has less outside info to work with and more than a half-million requests per year to work through. That Google appears to be operating in good faith despite its obvious opposition to the new "right" likely explains the court's refusal to award damages to the prevailing party.

The recently-established right is still problematic and prone to abuse. But this decision shows the courts aren't viewing search engines as towering, villainous money machines hellbent on ruining lives through algorithmic indexing. Instead, this court appears to be willing to engage all sides of the issue when addressing claimants' complaints about troublesome search results.


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  • icon
    wshuff (profile), 17 Apr 2018 @ 4:41am

    NT1 basically Steisanded himself. It’s one thing to have your Google results say that you were convicted of “conspiracy to account falsely” twenty years ago. It’s another to have a search reveal that a current court thinks you’re a remorseless shit who hasn’t changed and is probably still doing what got you in trouble in the first place. But at least your old conviction will get buried under the more recent entries where the court basically says it thinks you’re still a criminal.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Apr 2018 @ 3:10pm

      Re: Steisanded?

      Unless you tell us who NT1 is, he hasn’t Steisanded himself. The whole legal process has been anonymous.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 17 Apr 2018 @ 4:47am

    Even though he served his sentence, we feel he still deserves punishment.
    This other fellow went into a different line of business, so there is no way he would try to intercept communications again.
    The first fellow was grouchy & while this might be damaging we expect him to wear HIS scarlet letter until he shows the right amount of bow & scraping towards my wigged head.

    The only thing that has changed is Google made finding things faster. While they might be able to destroy media archives in the UK if the story was large enough the data is still out there elsewhere.

    Poor me, my crime keeps people from trusting me!!
    Make Google hide the evidence of acts I committed & was found guilty of!

    If you want to have this magical 'Right to be Forgotten' why does the court get to decide again who can qualify? The court did their job during the trial, & deciding who is worthy of this new right really does smack of a system that wants to pick winners & losers even after the sentence has run. But in a country where if you have enough money you can buy a court order to restrain the media from reporting on your bad acts, I am not surprised.

    Imagine if we lived in a world where you had to live with the headlines you create, perhaps it might make people think a bit more before breaking the law.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 17 Apr 2018 @ 5:18am

    So now we place both censorship and the ability to choose who are the chosen that get the benefit of a new start at the hands of the gods. I mean, judges. Because it would never be abused, of course.

    reply to this | link to this | view in chronology ]

  • identicon
    Jigsy, 17 Apr 2018 @ 5:36am

    From 0 to Godwin's Law in 2.7 seconds

    I've never really sided with the whole "right to be forgotten."

    Mainly because people like to have their cake and eat it too.

    Just imagine if Hitler was still alive today and put in one of these requests.

    "So, guys, about that whole Holocaust thing I did..."

    reply to this | link to this | view in chronology ]

  • identicon
    Jason, 17 Apr 2018 @ 5:47am

    Don't worry, none of this is important to you.

    The crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search...

    His past offending is of little if any relevance to anybody’s assessment of his suitability...

    There is no real need for anybody to be warned about that activity.

    This seems like an obvious question, but shouldn't the person/business that is considering NT2 be entitled to decide whether their past activities are relevant?

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 17 Apr 2018 @ 6:52am

      Re: Don't worry, none of this is important to you.

      Therein lies the entire issue of these “right to be forgotten” laws: Who else, other than the person who wants their past misdeeds to be forgotten, would be affected by the potential loss of access to information that said person wants memory-holed?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Apr 2018 @ 7:07pm

      Re: Don't worry, none of this is important to you.

      One of Britain's wealthiest men got caught paying private investigators to hack into government computers, while attempting to silence his critics. The government represents the people. Thus, it was an attack on the people. How can that ever be irrelevant? NT2 has used big money to make the record of using big money to make problems go away illegally go away legally.

      This is worse than their libel laws. Those restrict speech that might or might not be true. This is restricting speech that a court has already determined is true. It has been likened to court-sanctioned reputation management.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2018 @ 7:49am

    I'm pretty sure their convictions will mean they'll still be excluded from getting a job with a lot of government agencies.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2018 @ 8:22am

    So..... if Goggle now has to remove any references to the crimes committed by these citizens. Bing? Duck duck Go? How about the references from past newspapers as well? TV newscasts? Lets take a step further, shouldn't the court records be expunged as well?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2018 @ 10:17am

    as usual, money talking! i bet if this had been some ordinary person the result would have been the opposite! if someone has done something wrong/made a prick of themselves, why should that info not be available? this person and his ilk wants to know everything about everyone else!

    reply to this | link to this | view in chronology ]

  • identicon
    JD, 17 Apr 2018 @ 1:51pm

    Fast-forward 10 years ...

    I'm looking forward to the academic articles published in 2028 which will show there's a statistically significant effect of race in who can avail themselves of the RTBF.

    But only in the US, of course. Because I'm sure Europe doesn't have any ugly racist baises they try and hide. *cough*

    reply to this | link to this | view in chronology ]


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